Scandinavian Realism

Introduction
The American realists were practising lawyers or law teachers who sought to approximate
legal theory to legal practice. In Scandinavia, the group of jurists known as realists
approached their tasks on a more abstract plane and with the training of philosophers.
Axel Hagerstorm
Known as spiritual father.
His basic proposition was as that he denied the existence of objective values. There
was no such thing as goodness and badness in this world.
These words simply represent emotional attitudes of approval and disapproval
respectively towards certain facts and situation. It is only language form that has
created an illusion of objectivity.
He criticised Austins command theory. For him, the word duty only express an idea,
the association of feeling of compulsion with regard to a desired course of conduct.
This led Hagerstorm to deny the possibility of any science of the nought. All
questions of justice, aims and purposes of law are matters of personal evaluation and
not susceptible to any scientific process of examination.
In this way, many of the traditional problems of legal philosophy became illusionary.
He rejected the notion of right-duty relationship and the theory of legal obligations.
For him, these are merely psychological notions.
It must be replaced with the examination of actual use of the legal terms and a
psychological analysis of the mental attitudes involved.
He applied this to study of Roman Law. He set forth the thesis that Roman Law was
based on magical beliefs in the power of words to affect happenings in the world of
fact.
Lunstedt

 Vilham Lundstedt might be regarded as the most extreme of the Scandinavian.

He considered that there was no objective way to define the requirements of justice.
The invocations of justice is purely subjective and unacceptable metaphysical claims.
Instead law and legislations should be guided by social welfare centered on objective
study of social conditions and of the practical effects and capabilities of law in
improving society for all its members.
Lunstedt rejected all English conceptual theories of law which are metaphysical in
nature and have only theoretical significance.
He emphatically stated that law is not founded on the notion of justice but it is based
on social pressure and needs of the society.
Judges should think in terms of social welfare because the notion of right or
wrong, rights and duties are seen rather than as ideas or even illusions which
have real effects through the psychological or emotional feelings which then induce
and which in turn underpin the efficacy of law.
For him, law is not founded on justice, but on social needs and pressure. In the place
of justice, Lunstedt substituted the method of social welfare in which the
encouragement guiding motives where people strives to attain.
He was inspired to extent the principle of strict liability in matters relating to disputes
concerning torts, contract and criminal law with a view to prevent disruption of
society.
To show social welfare:
Rylands v Fletcher
The defendant owned a mill and constructed a reservoir on their land. The reservoir was
placed over a disused mine. Water from the reservoir filtered through to the disused mine
shafts and then spread to a working mine owned by the claimant causing extensive
damage.
Held: The defendants were strictly liable for the damage caused by a non- natural use of

land.
Lord Cranworth:
If a person brings, or accumulates, on his land anything which, if it should escape, may
cause damage to his neighbour, he does so at his peril. If it does escape, and cause
damage, he is responsible, however careful he may have been, and whatever precautions
he may have taken to prevent the damage.

Lunstedt idea is extreme. The wholesale rejection of right, duties will only distort
what actually goes on. Thus, an answer to his proposition is that, a right is only a
word for the favourable position enjoyed by a person in consequence of the
functioning of legal machinery is that everything depends on why a court viewed his
position favourably. This is because success in action depends on the idea of right. It
happens too that a person may enjoy a favourable position by virtue of a right even
though it is socially undesirable that he should do so.
It is also not clear how far the method of social welfare represents the observable
pattern of administration and how far it is what Lunstedt himself would have liked to
see.
Olivecrona
He was a pupil of Axel Hagerstorm. His writings emphasis psychological
significance of legal ideas.
Law is nothing but a set of social facts. He rejected the view that laws are a
command or an expression of the will of the State and argued that they are
independent imperatives issued by constitutional agencies of the State from time to
time, and they operate in the minds of the judge while reaching a particular decision.
Law has a binding force as much as it is valid. An invalid law is not binding. Its a
myth.
There is no such thing as the binding force behind the law. For instance, a person
may break the law and go undetected yet no one would say that the law is not
binding on him. In his opinion, the notion of binding force only exists in the mind of

the person because of the psychological pressures which exert an influence in his
conduct. This motives him for regularity of behaviour.
Natural lawyers assert that it lies in natural law and natural law is binding because it
is an article of faith but Professor Olivecrona says that the binding force of the law is
a mirage of language. It is just an idea in the individual mind. Most people have the
feeling of being bound by the law. There is no independent force which exist outside
the mind.
He tried to resolve the questions as to, how the moral standards of every single
individual are fashioned and what is the influence of the use of force according to the
rules of law in this respect.
He suggests that the character of a person is formed under the influence of his
surroundings, especially in earlier years. Ideas of a person are also branded by the
society where we live in. Law is one of the foremost forces working within the
society.
When he grows up and becomes acquainted with the conditions of life he is subjected
to its influence.The effect is not only to create a fear of the sanctions and cause the
individual to adjust himself so as to be able to live without fear. The rules also have a
positive moral effect in that they cause a deposit of moral ideas in the mind.The rules
of law are independent imperatives.
In that form they are communicated to young and old. Now these imperatives are
absorbed by the mind. We take them up and make them an integral part of our mental
equipment.A firm psychological connection is established between the idea of certain
actions and certain imperative expressions, forbidding the actions or ordering them to
be done. We speak of a moral command when an independent imperative has been
completely objectivated and therefore is regarded as binding without reference to an
authority in the outer world.
Several things explain how the rules of law can thus be absorbed by the whole
people. The suggestive effect of the imperatives is enormous when there is power
behind them- here the majestic power of the state, working relentlessly according to
the rules about sanctions. This power is surrounded by august ceremonies and met
with a traditional and deep-rooted reverence. All this combines to make a profound

impression on the mind, causing us to take the fundamental commands of the law
to heart as objectively binding. We do it all the more readily since we understand, at
least instinctively, the necessity of these rules for the maintenance of peace and
security.
Divorcing morality from law, he said that law is binding whether or not it is
inconsistent with morality.
He also disagrees that binding force of law lies in the consent of State or will of
State.
Alf Ross
Like Olivecrona, he also asserts that that law must be interpreted as conceptions of
social reality which is nothing but the actual behaviour of man in the society.
He follows the American line approach and accepted the authority of court to
expound law. In his view, law are legal norms in which directives addressed to the
court.
These norms consists of two types which are norms of conduct which deals with
behavioural aspect of law and norms of competence of procedure which prescribe the
mode of procedure to be followed for determining the norms of conduct.
He pointed out that while deciding a case, the actual past behaviour of the judge as
well as the set of ideals by which he motivated must be taken into account in order to
determine the predictability of the law in future.
According to Ross, validity of law lies in the predictability of decisions. Valid law
implies the abstract set of normative ideas which serve as a scheme of interpretation
for the phenomena of law in action.
These norms are effectively followed because they are felt to be socially binding by
the Courts and other legal authorities which apply the law. Norms are therefore
observed as law because they are felt by the judge to be socially binding and
therefore, obeyed. A norm is valid if it is predictable that court will apply it.

Scandinavian Realism as a Whole

The Scandinavian Realist, resemble other modern schools in their positivist outlook in
their desire to eliminate metaphysics. For them law can be explained only in terms of
observable facts, and the study of such facts, which is the science of law, is, therefore, a
true science like any other concerned with facts and events in the realm of casualty. Thus,
all such notions as the binding force or validity of law, the existence of legal rights and
duties, and the notion of property are dismissed as mere fantasies of the mind, with no
actual existence other than in some imaginary metaphysical world. If then those notions
are dismissed as mere metaphysical will-o-wisps, what is left for the legal scientist?
Contribution of Realism
The main contribution of realists to jurisprudence lies in the fact that they have
approached law in a positive spirit and demonstrated the futility of theoretical concepts of
justice and natural law. Opposing positivists view, the realists hold that law in uncertain
and indeterminable in nature therefore; certainty of law is a myth. As Frank Jerome
rightly pointed out, realist school has sought to liberate the judges from the enslavement
of unduly rigid legal concepts and exorted them to take into consideration the ground
realities of social facts while deciding the cases.
According to Friedmann, realist movement is an attempt to rationalize and modernize
the law- both administration of law and the material for legislative change, by utilizing
scientific method and taking into account the factual realities of social life. For Julius
Stone, Realist movement is a gloss on the sociological approach to jurisprudence. He
considers realism as a combination of the positivist and the sociological approach. It is
positivist in the sense that it undertakes the study of law as it is, and sociological, because
it expects that law should function to meet the ends of society.

Criticism against Realism as a whole not only Scandinavian

Hart
Hart says that judges have got a discretion to decide but we cannot brush aside the
fact that there is a general framework of rules which they work.
Realists ignore the fact that law is based on social practice. It embodies accepted
legal standards. It is true that in some place that law has an open texture that can be
interpreted in more than one way by judges but still rules play their part.
It is possible that in a given society, judges might always first reach their decisions
intuitively or by hunches and then pick up the authorities or rules which suit their
judgments. But this is not the general practice in the judicial world. If judges depart
widely from rules, they will invite criticism from the legal community. The
legislature may meet the situation by amending the rules to remind the judges that
they must not depart from the.